Opinion

Bruce Freeman v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Oct 19, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that the U.S. Postal Service is not an Executive agency for the purposes of Title 5

How later courts described this case

finding that the U.S. Postal Service is not an Executive agency for the purposes of Title 5

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRUCE FREEMAN, DOCKET NUMBER

Appellant, DA-3443-16-0392-I-1

UNITED STATES POSTAL SERVICE, DATE: October 19, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bruce Freeman, Austin, Texas, pro se.

Paul C. Wolf, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such

as this one only when: the initial decision contains erroneous findings of material

fact; the initial decision is based on an erroneous interpretation of statute or

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The agency removed the appellant from his Mail Processing Clerk position

for unacceptable conduct–failure to report for duty. Initial Appeal File (IAF),

Tabs 2-3, Tab 6 at 10. The appellant filed an appeal alleging that he was not

afforded due process and was deprived of the opportunity to work prior to the

issuance of the notice of removal. IAF, Tab 2 at 6. The appellant further alleged

that these actions were taken in retaliation for his prior protected union and equal

employment opportunity activity. Id.

¶3 On June 16, 2016, the administrative judge issued an acknowledgment order

notifying the appellant of the requirements to establish Board jurisdiction ov er his

appeal and ordering the appellant to file evidence and argument establishing

jurisdiction. IAF, Tab 4 at 2. The agency filed a motion to dismiss in which it

argued that the Board lacked jurisdiction over the appeal because the appellant

was not a preference eligible, a supervisor or manager, or an employee engaged in

personnel work; and that the appellant neither argued nor established a restoration

claim. IAF, Tab 6 at 5-7. The appellant did not respond to the administrative

judge’s order or to the agency’s motion to dismiss. IAF, Tab 7, Initial Decision

(ID) at 2. Subsequently, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction. ID. The administrative judge

found that the appellant was not a preference-eligible individual and was not a

supervisor or management employee or an employee engaged in personnel work

in other than a purely nonconfidential clerical capacity, and thus the Board lacked

jurisdiction over the appeal. ID at 2. The administr ative judge further found that,

because the Board lacked jurisdiction over the appeal, she was without authority

to address the appellant’s retaliation and possible whistleblower reprisal claims.

Id.

¶4 The appellant has filed a petition for review in which he argues that he did

not receive an acknowledgment order or any other information regarding his

appeal and therefore he was unable to provide information as to why the Board

has jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1. The

appellant asserts that he did not learn his case was closed until he called the

Board’s Dallas Regional Office. Id. He does not attach any supplemental

information regarding jurisdiction to his petition for review. Id. The agency has

filed a response opposing the appellant’s petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A U.S. Postal Service

employee may file a Board appeal under 5 U.S.C. chapter 75 only if he is covered

by 39 U.S.C. § 1005(a) or 5 U.S.C. § 7511(a)(1)(B)(ii). 5 U.S.C. § 7511(b)(8).

Thus, to appeal an adverse action under chapter 75, a Postal Service employee

must meet the following criteria: (1) he must be a preference eligible, a

management or supervisory employee, or an employee engaged in personnel work

in other than a purely nonconfidential clerical capacity; and (2) he must have

completed 1 year of current continuous service in the same or similar positions.

Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996).

¶6 On review, the appellant asserts the Board has jurisdiction over his appeal

but does not provide any evidence or argument in support of this claim. PFR

File, Tab 1. As the administrative judge properly found, the appellant does not

meet the criteria that he, as a Postal Service employee, must meet for the Board to

have jurisdiction over the appeal. The administrative judge properly reviewed the

evidence set forth in the record and found that the appellant w as not a preference

eligible, a management or supervisory employee, or an employee engaged in

personnel work in other than a nonconfidential clerical capacity. ID at 1 -2.

¶7 The appellant’s argument that he did not receive an acknowledgment order

or other information regarding his appeal, and consequently did not have the

opportunity to prove jurisdiction, is also unavailing. When a certificate of service

indicates that a document was mailed to the appellant’s address of record, it is

presumed that it was duly delivered to, and received by, the appellant. Deville v.

Government Printing Office, 93 M.S.P.R. 187, ¶ 11 (2002); Santos v. U.S. Postal

Service, 77 M.S.P.R. 573, 577 (1998). The certificate of service appended to the

administrative judge’s acknowledgment order indicates it was mailed to the

appellant’s address of record. Compare IAF, Tab 4 at 17, with IAF, Tab 2 at 2.

Similarly, the agency’s motion to dismiss and the administrative judge’s initial

decision indicate they were mailed to the appellant’s address of record. Compare

IAF, Tab 6 at 13, Tab 8, with IAF, Tab 2 at 2. The appellant has not argued that

the address on each of the referenced certificates of service was not his address of

record or that there is another reason he did not receive his mail. The appellant’s

allegation that he did not know about the acknowledgment order is insufficient to

rebut the presumption that the order and subsequent motion to dismiss and initial

decision were delivered to and received by the appellant. Deville, 93 M.S.P.R.

187, ¶ 11.

¶8 Finally, the administrative judge properly found that the Board lacks

jurisdiction over the appellant’s retaliation claims. Although Postal Service

employees may raise retaliation as an affirmative defense, th e Board is without

jurisdiction to hear such claims in the absence of an otherwise appealable action.

See Hicks v. U.S. Postal Service, 114 M.S.P.R. 232, ¶ 13 (2010) (finding that

allegations of discrimination and retaliation did not confer jurisdiction in the

absence of an otherwise appealable action); Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980) (determining that prohibited personnel practices under

5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,

681 F.2d 867, 871-73 (D.C. Cir. 1982). Furthermore, Postal Service employees

may not file an individual right of action appeal be cause the Postal Service is not

a covered agency under the Whistleblower Protection Act. 5 U.S.C.

§ 2302(a)(2)(C); Matthews v. U.S. Postal Service, 93 M.S.P.R. 109, ¶ 13 (2002);

Mack v. U.S. Postal Service, 48 M.S.P.R. 617, 621 (1991); see Banks v. Merit

Systems Protection Board, 854 F.3d 1360, 1362-63 (Fed. Cir. 2017) (finding that

the U.S. Postal Service is not an Executive agency for the purposes of Title 5). In

the absence of an appealable action, we find that the administrative judge

properly dismissed the appeal in its entirety.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law b y the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the